I had the opportunity to hear the Regional Director for the EEOC of the Southeast speak several months ago. One thing he made clear was that due to budget constraints they were only going to be pursuing big cases that would have a major impact. He implied that all areas were having similar budget problems and all had a lack of attorneys and investigators. Well apparently not all areas are having issues, because in a newsletter from the law firm Fisher & Phillips Attorney James McDonald reports that the EEOC is investigating a chain of Massachusetts coffee shop because they may be hiring people who are “too attractive.” His tale ultimately leads to the question “would you like to be declared ugly enough to be a protected category?”
In his labor letter called “Here’s Looking At You, Kid” – The EEOC Looks For Beauty Bias McDonald reports that the investigation was not prompted by any complaint, so the EEOC was not investigating because someone had thought they had been wronged. Rather it is a “Commission-initiated investigation” conducted, according to the director of the EEOC’s Boston office, because “it’s possible that applicants or employees might not know that they have been discriminated against.” My first reaction to this was on what basis is there discrimination. My reading of Title VII does not mention attractiveness as a protected category. McDonald raises the concern that it is probably not the best use of agency time and money to investigate a complaint that no one has made. This would go along with what I had heard in Atlanta as well. He also says this “… raises a more troubling question: Is the EEOC trying to establish that it is illegal for an employer to prefer attractive employees over unattractive ones?”
One way in which physical attractiveness, or the lack thereof, may be covered as a protected category is under the ADA. However, McDonald points out “Mere unattractiveness does not qualify as a disability under the Americans with Disabilities Act. The ADA’s definition of “impairment” includes cosmetic disfigurements but it excludes ordinary physical characteristics such as height, weight, eye color, hair color and the like. Most cases to date in which unattractiveness has been the basis for an ADA claim have involved severe disfigurements or extreme obesity.” That is not the situation in this case.
McDonald raises the question what happens if a case is made that tries to argue that it is against the law to prefer an attractive person over a homely person? Who will decide? Will an individual step up and say “I was discriminated against because I am too ugly”? Or will a judge have to make a determination? Unlikely according to McDonald. He said, “A federal judge in Nevada recently rejected a beauty-bias lawsuit, noting that the court could not ‘discern a standard by which a jury would determine Defendant’s notion of attractiveness. It hardly needs to be said that beauty is in the eye of the beholder.’”
McDonald raises the question “….Would homeliness become a criteria for hiring goals under affirmative action plans? Would attractive job applicants attempt to downplay their good looks so as not to be rejected by employers fearful of lawsuits? Will employees who sense they are about to be terminated intentionally gain weight or let their appearance decline so that they will fit within the law’s protection when they are fired?” As I asked in my title would you like to be declared ugly enough to be in a protected category?
I agree with him in his conclusion that the EEOC is making a fuss about nothing. Although it is fairly well known that in some jobs, such as sales, physical attractiveness may give the candidate an edge most employers are interested in ability. Although we all may enjoy having that attractive server coming to our table if they cannot get our order correct we will not be impressed with their looks long. Despite the punch line of an old joke the secretary that gets hired is the one that can do the job. I have written about this before in a post called ISM Number Seven: Ugly-ISM.
McDonald thinks we will see some test cases in the future and some attempts at passing legislation. So stay tuned. To read his full labor letter and analysis click here.
And if any of you have examples of cases where a clearly attractive, yet incompetent, person was hired in preference to someone more able yet less attractive please let me know. Also, who wants to be the first to step up and say “I am ugly enough to be in a protected category?”